At the Supreme Court’s Wednesday conference — a double one, and with only six justices participating because of Justice Mariano-Florentino Cuéllar’s retirement at the end of October — actions of note included:

  • Bail denial. The court granted review in In re Harris, limiting the issue to: “What evidence may a trial court consider at a bail hearing when evaluating whether the facts are evident or the presumption great with respect to a qualifying charged offense, and whether there is a substantial likelihood the person’s release would result in great bodily harm to others? (Cal. Const., art. I, § 12, subd. (b).)” The First District, Division Three, Court of Appeal’s published opinion, applying the Supreme Court’s landmark decision in In re Humphrey (2021) 11 Cal.5th 135 (see here), mostly upheld the denial of bail for a defendant charged with attempted murder and aggravated mayhem, but conditionally vacated the denial and directed the superior court to make “further findings as to whether clear and convincing evidence would support a conclusion that no less restrictive alternatives to detention could reasonably protect the government’s interests in pretrial detention.” It was the defendant who petitioned for review.
  • Bail OSC. Besides agreeing to hear Harris, the court in In re Vasquez directed the Fifth District to issue an order to show cause “why relief should not be granted on the grounds the record at the June 17, 2021, bail hearing did not contain evidence of a qualifying offense sufficient to sustain a hypothetical verdict of guilt on appeal (In re White (2020) 9 Cal.5th 455, 462-464) [see here] and the superior court failed to set forth the reasons for its decision to deny bail in the court’s minutes (In re Humphrey (2021) 11 Cal.5th 135, 155-156).” The Court of Appeal had summarily denied the defendant’s habeas corpus petition.
  • Covid insurance. The court denied review in The Inns by the Sea v. California Mutual Insurance Company, which, according to the published opinion of the Fourth District, Division One, “present[ed] an issue of first impression for a California appellate court: does a commercial property insurance policy provide coverage for a business’s lost income due to the COVID-19 pandemic?” The appellate court found no coverage under the policy in the case. It noted that the issue has been extensively litigated in the federal courts and in other states, and said its holding was consistent with “[t]he overwhelming majority of federal district court cases . . . [and] with each federal appellate court to consider the issue.” The opinion also mentioned the University of Pennsylvania Law School’s Covid Coverage Litigation Tracker website. An earlier petition to transfer the appeal to the Supreme Court before a Court of Appeal decision (see rule 8.552) was denied.
  • Attorney fees. The court granted-and-held in Hernandez Flores v. Westlake Services, LLC, but the hold should not be too long because the case is waiting for a decision in Pulliam v. HNL Automotive Inc., which was argued 10 days ago. The issue in Pulliam is whether the word “recovery” as used in the Holder Rule (16 C.F.R. § 433.2) includes attorney fees. The Rule gives consumers relief from loans used to purchase what turn out to be defective goods, but limits consumers’ recoveries. The Second District, Division Three, unpublished opinion in Hernandez Flores, a case involving the unhappy buyer of a used car, followed the Court of Appeal decision in Pulliam in holding the Rule “does not cap the attorney fees, costs, expenses, or prejudgment interest” that can be recovered.
  • Conservatorship jury trial. The court denied review in Conservatorship of C.O., but Justice Goodwin Liu recorded a vote to grant. In a published opinion, the Sixth District found harmless error in the superior court reestablishing a Lanterman-Petris-Short Act involuntary conservatorship without advising the conservatee on the record of his right to a jury trial and concluded that the conservatee’s lawyer could waive that right on his behalf. The appellate court expressly disagreed with the Second District, Division Six, holding in Conservatorship of Heather W. (2016) 245 Cal.App.4th 378, 383 that, under California constitutional principles, “a trial court must obtain a waiver of the right to a jury trial from the person who is subject to an LPS commitment.” There was no petition for review in Heather W.
  • Veterans resentencing. Justices Leondra Kruger and Joshua Groban recorded dissents from the denial of review in People v. Rodriguez. The Fourth District, Division Two, 2-1 unpublished opinion affirmed the denial of a petition for resentencing under Penal Code section 1170.91 (b), which applies to military service members or veterans who suffer from various traumas, mental health problems, or substance abuse and who are “currently serving a sentence for a felony conviction.” The majority held the statute doesn’t apply to “plea agreements with a stipulated prison term.” The dissent asserted the decision conflicted with the Supreme Court’s decision in People v. Stamps (2020) 9 Cal.5th 685 (see here) and the dissent also disagreed with the Fourth District, Division One, opinion in People v. King (2020) 52 Cal.App.5th 783, on which the majority relied. The Supreme Court denied review in King with no recorded dissenting votes. Last year, Justice Liu issued a concurring statement when the court denied review in a case about section 1170.91’s retroactivity.
  • Another resentencing case. Justices Kruger and Groban also recorded dissenting votes from the denial of review in People v. Johnson, where a divided Sixth District unpublished opinion upheld a resentencing unfavorable to the defendant. The appellate court assumed the superior court did not err, concluding the superior court’s silence about the defendant’s post-conviction prison conduct didn’t mean that the conduct hadn’t been considered. The dissent believed “the record affirmatively shows error.”
  • Youth offender parole. Justice Liu again recorded votes to grant review in cases raising equal protection challenges to a statute making youth offender parole hearings unavailable for defendants sentenced to life without parole for offenses committed between the ages of 18 and 25. The court denied review in People v. Trotter, where the unpublished opinion of the Second District, Division Three, found unconvincing the constitutional argument made by a defendant who was sentenced for a murder he committed when he was 24. The court also declined to hear People v. Vo, an unpublished Third District decision involving a defendant who committed murder at age 18. The Vo court “acknowledge[d] that many courts which have rejected equal protection challenges . . . have expressed reservation in doing so.” Justice Liu has shown a continuing interest in these parole ineligibility issues. (See here and here.)
  • Criminal case grant-and-holds. There were 10 criminal case grant-and-holds — six more holding for a decision in People v. Strong (see here), two more holding for People v. Delgadillo (see here), one more holding for In re Vaquera (see here), and one more holding for People v. Braden (see here).
  • Disposal of grant-and-holds. The court got rid of 10 criminal case grant-and-holds: seven cases that had been waiting for the January decision in In re Mohammad (2022) 12 Cal.5th 518 were returned to the Courts of Appeal for reconsideration in light of that decision, review was dismissed in one case that had been on hold for both the Mohammad decision and the December 2020 decision in In re Gadlin (2020) 10 Cal.5th 915, and two cases that had been waiting for last July’s decision in People v. Lewis (2021) 11 Cal.5th 952 were shed — review was dismissed in one and the other was transferred for reconsideration in light of Lewis and SB 775. By our count, there are 42 other Lewis grant-and-holds still pending.  There had been 327 of them.  (See here.)